Illinois Child Custody Proceedings Explained

Tags: Illinois, Child Custody, Child Support

Image: Page Light Studios / iStock

By Valerie Keene

Published Jul 27, 2022

Illinois child custody is not as complicated as it may sound. This article covers what to expect in court, how Illinois law divides parental decision-making responsibilities from parenting time, and the basis on which courts make decisions — the child’s “best interest”.

Like the rest of the nation, Illinois adopted the Uniform Child Custody Act (UCCA) that aims to minimize interstate child custody conflicts. The state’s child custody laws allow divorcing parents the option of joint custody, and the courts recognize physical and legal custody. 

What’s in the child’s best interest?

Courts make various decisions that affect the welfare of children during divorce proceedings. During any custody hearing, the overriding focus is always on getting a solution that prioritizes the child’s best interest. These decisions include safety and permanency planning, termination of parental rights, and custody and placement determination. 

When making these determinations, an Illinois family court will reference a set of predefined statutes designed to cater to the best interests of a child. In Illinois, the law provides a list of factors to be considered that address a child’s age-related developmental needs.  

Rights To Make Major Decisions for The Child 

Custody proceedings also double as allocation of parental responsibilities. Illinois child custody laws use two concepts – parenting time (physical custody) and parenting responsibility (legal custody) to describe the parental relationship with their child. Parenting time schedule’s each parent’s time with the children. 

Parenting responsibilities describe each parent’s ability to make decisions on behalf of the child. Some divorcing parties agree to share decision-making, while others divide decision-making responsibilities into various categories. 

Some mandatory decision-making categories in Illinois include:

  • Health

  • Education

  • Religion 

  • Extracurricular activities 

If the divorcing parents can’t agree on how to divide the responsibilities, the family court judge may allocate them. 

Parenting Time and Rights to Make Day-To-Day Decisions for The Child

The amount of time a divorced parent spends with a child and their rights to make daily life decisions for the child depends on the custody agreement. 

The state recognizes two types of child custody – sole custody and joint custody. In Illinois, joint custody is an even split of parenting time and decision-making between both parents. Joint custody assumes that the divorcing parents can put aside their differences for the welfare of the children. Both parents must sign the joint custody agreement

Under a joint custodial agreement, each parent spends time with the children every other weekend or as outlined in the agreement. Each parent makes the child’s daily decision when the children are in their custody. 

If a divorcing couple opts for sole custody, the primary parent gets to make all the daily decisions and live with the children full-time.  

Parenting plan

Also known as a joint parenting agreement, a parenting plan is necessary when the court awards divorcing parents’ joint custody of the children. A parenting plan declares that the parents will make joint decisions on the child’s health care, education, and religious training. The plan further specifies the rights and responsibilities of the parent for the child. It also outlines the visitation schedule ordered by the court or agreed upon by the parents. A joint parenting agreement also outlines the process of resolving any parenting plan disputes. 

Court Process

Illinois Statutes Chapter 750 Section 5/601.2 governs the commencement of child custody proceedings. You can petition for child custody in a court of law by:

  • Filing for divorce, legal separation, or declaring the marriage invalid

  • Filing for custody in the county where your child lives

Typically, one of the parents initiates the custody hearing, but there’s a legal provision for a non-parent, such as step-parent and grandparents, to file for child custody.

After filing a child petition for child custody, you must serve the person with the child with a copy of the petition and written notice at least 30 days before the hearing date.

Child support is separate

The issue of child support arises once the divorcing couple has finalized the issue of child custody. Typically, the noncustodial parent pays child support to the custodial parent. Therefore, the parents must agree on these terms before exploring the issue of child support. 

Best Interest of the Child

In Illinois, child custody laws stipulate that the court’s determination of legal and physical custody prioritizes the child’s best interest. The courts may consider a child’s wishes within the context of their age and ability to express independent preferences.  

A child’s best interests refers to custody and visitation decisions, and discussions must be made with the ultimate goal of safeguarding a child’s wellbeing. That includes their happiness, mental health, security, and emotional development.

Courts make “best interests” determinations by considering various factors that relate to the child’s circumstances, a parent’s circumstances, and their capacity to parent while prioritizing the child’s safety and wellbeing.

Factors that influence court’s understanding of child’s best interest

The factors that an Illinois family court use to determine a child’s best interest are stipulated by law and they include:

  • The child wishes if they’re old enough to express a reasonable preference

  • The parents’ mental and physical health

  • A child’s special needs and each parent’s ability to meet them

  • Cultural and religious considerations 

  • The need for a stable home environment

  • The child’s age and gender

  • Adjustment to community and school

  • Evidence of parental abuse or drug use

A family law judge may consider a child’s preference if they’re old enough to articulate their preference logically and reasonably.

Guardian ad litem

Sometimes a family judge in Illinois may appoint guardian ad litem to interview the children and investigate the solutions that would be in a child’s best interest. The guardian may look into the family situation and advise the court on where the child should primarily live, if a parent’s substance abuse may harm a child, or define the children’s contact with a parent.

Temporary orders

An Illinois family judge may issue temporary orders during a divorce proceeding to help a divorcing couple navigate through unclear areas. Temporary orders are issued to spouses who need to implement a parenting plan immediately.

Parenting plan

Each parent should file a parenting plan within 120 days of filing for child custody in an Illinois court. If both parents agree, they may file one plan. If not, the court will examine both plans and determine what’s in the child’s best interest. If both parents fail to file a parenting plan, the court will hold a hearing and determine parental responsibilities based on what’s best for the child. 

If parents don’t agree, how does a court determine what the child’s best interests are?

If parents can’t agree on their own, an Illinois family judge may order mediation. The parent may be compelled to work with a neutral third party to reach an agreement. If that fails, the court will create and enforce a parenting plan.

Will My Child Have to Testify?

Children are acutely aware of what happens in the home and may have information that may verify a parent’s position. Sometimes a parent may push for a minor’s voice to be heard. 

Most family court judges in Illinois do everything they can to avoid involving children in their parent’s legal dispute. Most courtrooms don’t want to involve minors in divorce proceedings and rarely want children to testify. 

If it’s in the best interest of a minor to testify during a custody hearing, the court appoints guardian ad litem to represent the child. That is usually the case if there are allegations of neglect, abuse, or anything that threatens a child’s wellbeing. 

The court may have a neutral expert such as a clinical psychologist determine the child’s best interest and recommend custody and parenting time. 

Sometimes an Illinois family law judge may ask to speak with the older children privately. They speak to the children to see how they are faring and ensure they understand the legal process and why such decisions are being made. 

What Goes in a Parenting Plan?

A standard parenting plan in Illinois details parental responsibilities, including how much time each parent spends with the children and decision-making. A parenting plan may cover anything a parent wishes to include concerning the child. Some of the items on the plan include:

  • Where the child lives

  • Time allocation between the parents

  • How the parents communicate and pass crucial information 

  • How the child commutes to each parent’s house

  • Parental rights when making major decisions

  • Moving restrictions 

What Joint Custody Means for Parents

Joint custody in Illinois means divorcing couple putting aside their differences, and sharing parenting time and decision-making. The parents agree to raise the kids jointly and make major life decisions together. Often that means: 

Communicating with your ex

It’s best if you’re constantly communicating with your ex-spouse to arrange pickups, check on the kids, share health records, school reports, and more. 

Coordinating with your ex

With joint custody, the children shuttle between both your houses. Hence, you must coordinate pick-up times, dates, holidays, and more. Many of these activities are detailed in the custody agreement; hence, they’re legally binding. 

Respecting your ex’s parenting time

Every item on the joint custody agreement, even drop-off and pick-up time, is legally binding. Therefore, you need to respect the timetable and your ex’s parenting time.

Constraints on moving, especially far away or out of state

The joint custody agreement details the acceptable distances when moving houses. That means you can’t simply pack up and leave without consulting your ex-spouse as it would amount to a breach. 

If you do want to move, what are your options?

You need an Illinois’ court express permission to move children out of Illinois if you have joint custody with your former spouse. You must provide your ex-spouse with written notice of the relocation and file a copy of the notice with the circuit court clerk. The other parent must agree to the relocation. You may seek redress through an Illinois law court if they don’t sign off. 

When One Parent Violates the Parenting Plan

If the other parent violates the parenting plan, you can file a contempt of court petition with the court. You could ask the court to order the other parent to follow the parenting plan in the petition. Alternatively, you can ask the court to punish them for violating the plan. 

If a custodial parent secretly moves a minor without court permission or consent from a noncustodial parent, an Illinois court may sanction them with a contempt order. They may be liable to a fine, jail time, or lose custody of the children.

For minor violations such as routinely delivering the children late or refusing to pick them up on time, the court may adjust the amount of custody time allowed. If it becomes an ongoing issue, the parenting plan may be altered to let the kids live with you permanently.

That said, for minor violations it’s usually best to try to work it out with the other parent. Or, you could try mediation. If the anger runs deep between the two of you, mediation may be a good idea. A professional mediator can be the voice of reason to help you find common ground. Mediation helps resolve the differences between co-parents and temper down the animosity. 

Once the court passes a joint parenting order, you can’t change it for two years. Failing to follow the order means breaking the law and may lead to legal consequences such as fines and jail time. While you may seek redress through the court, it’s not the best approach when you have joint custody. 

Layering more legal battles following a custody hearing may lead you to incur substantial legal expenses and tangle you in lengthy court proceedings. It’ll probably introduce further strain in the relationships, creating an unhealthy environment for the children. 

Putting aside your spousal differences for the sake of the children makes for an easy co-parenting agreement. Maintaining a cordial relationship motivates each parent to respect the terms of the parenting plan. You’re both likely to be more accommodating to each other needs, which improves the quality of life.